I cannot speak to what the law is and how it is applied in every jurisdiction, but I can answer this question on this topic as it applies to the jurisdiction where I practice divorce and family law (Utah).
We all know that there are many stepparents who are often the only parental figure many children have ever known (in situations where the stepparent married the child’s parent when the child was an infant or very young, and in other situations where the children may be older but never knew their biological mother or father, so that the step mother or stepfather is the only kind of father or mother figure they have had in their lives). We know of minor children and of people who are now adults who become as close, or even closer, to their stepparents as they were with their biological parents. We know situations where a stepchild who is cut off from that loving and positive relationship with the stepparent has been nothing short of devastating to that stepchild.
At the same time, we know of many examples (more than you might imagine) in which a stepparent involved in a divorce with his or her stepchildren’s biological parent does not have a particularly good relationship with his/her stepchildren, but claims a desire to want visitation or parent time with his/her stepchildren or even might seek custody of his/her stepchildren as a means of gaining leverage in the divorce action and/or just plain being malicious toward the soon to be ex-spouse.
And so there are many interests that need to be considered and balanced if and when a stepparent tries to seek visitation rights with or even custody of his/her stepchildren.
Note: if a husband and wife (one or both of whom are stepparents) agree that a stepparent is important to the children and that the children should maintain a close relationship and frequent contact with the stepparent, there is nothing to prevent these divorcing spouses from agreeing to rights of parent-time or even shared custody (as long as the biological or adoptive parent or parents of the children—whose parental rights have not been terminated—or guardian or guardian at litem
are not opposed to it).
Here is how Utah currently handles such a situation (see below, effective September 1, 2022). As you will see, there is a high bar set for a stepparent who seeks an award of visitation or custody of stepchildren.
Utah Code Title 30. Husband and Wife
Chapter 5a. Custody and Visitation for Persons Other than Parents Act
30-5a-103. Custody and visitation for individuals other than a parent.
(a) In accordance with Section 80-2a-201, it is the public policy of this state that a parent retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s children.
(b) There is a rebuttable presumption that a parent’s decisions are in the child’s best interests.
(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or visitation rights to an individual other than a parent who, by clear and convincing evidence, establishes that:
(a) the individual has intentionally assumed the role and obligations of a parent;
(b) the individual and the child have formed a substantial emotional bond and created a parent-child type relationship;
(c) the individual substantially contributed emotionally or financially to the child’s well being;
(d) the assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) the continuation of the relationship between the individual and the child is in the child’s best interest;
(f) the loss or cessation of the relationship between the individual and the child would substantially harm the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused or neglected the child.
(3) A proceeding under this chapter may be commenced by filing a verified petition, or petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district court in the county where the child:
(a) currently resides; or
(b) lived with a parent or an individual other than a parent who acted as a parent within six months before the commencement of the action.
(4) A proceeding under this chapter may be filed in a pending divorce, parentage action, or other proceeding, including a proceeding in the juvenile court involving custody of or visitation with a child.
(5) The petition shall include detailed facts supporting the petitioner’s right to file the petition including the criteria set forth in Subsection (2) and residency information as set forth in Section 78B-13-209.
(6) A proceeding under this chapter may not be filed against a parent who is actively serving outside the state in any branch of the military.
(7) Notice of a petition filed pursuant to this chapter shall be served in accordance with the rules of civil procedure on all of the following:
(a) the child’s biological, adopted, presumed, declarant, and adjudicated parents;
(b) any individual who has court-ordered custody or visitation rights;
(c) the child’s guardian;
(d) the guardian ad litem, if one has been appointed;
(e) an individual or agency that has physical custody of the child or that claims to have custody or visitation rights; and
(f) any other individual or agency that has previously appeared in any action regarding custody of or visitation with the child.
(8) The court may order a custody evaluation to be conducted in any action brought under this chapter.
(9) The court may enter temporary orders in an action brought under this chapter pending the entry of final orders.
(10) Except as provided in Subsection (11), a court may not grant custody of a child under this section to an individual who is not the parent of the child and who, before a custody order is issued, is convicted, pleads guilty, or pleads no contest to a felony or attempted felony involving conduct that constitutes any of the following:
(a) child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114;
(b) child abuse homicide, as described in Section 76-5-208;
(c) child kidnapping, as described in Section 76-5-301.1;
(d) human trafficking of a child, as described in Section 76-5-308.5;
(e) sexual abuse of a minor, as described in Section 76-5-401.1;
(f) rape of a child, as described in Section 76-5-402.1;
(g) object rape of a child, as described in Section 76-5-402.3;
(h) sodomy on a child, as described in Section 76-5-403.1;
(i) sexual abuse of a child, as described in Section 76-5-404.1, or aggravated sexual abuse of a child, as described in Section 76-5-404.3;
(j) sexual exploitation of a minor, as described in Section 76-5b-201;
(k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or
(l) an offense in another state that, if committed in this state, would constitute an offense described in this Subsection (10).
(a) As used in this Subsection (11), “disqualifying offense” means an offense listed in Subsection (10) that prevents a court from granting custody except as provided in this Subsection (11).
(b) An individual described in Subsection (10) may only be considered for custody of a child if the following criteria are met by clear and convincing evidence:
(i) the individual is a relative, as defined in Section 80-3-102, of the child;
(ii) at least 10 years have elapsed from the day on which the individual is successfully released from prison, jail, parole, or probation related to a disqualifying offense;
(iii) during the 10 years before the day on which the individual files a petition with the court seeking custody the individual has not been convicted, plead guilty, or plead no contest to an offense greater than an infraction or traffic violation that would likely impact the health, safety, or well-being of the child;
(iv) the individual can provide evidence of successful treatment or rehabilitation directly related to the disqualifying offense;
(v) the court determines that the risk related to the disqualifying offense is unlikely to cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any time in the future when considering all of the following:
(A) the child’s age;
(B) the child’s gender;
(C) the child’s development;
(D) the nature and seriousness of the disqualifying offense;
(E) the preferences of a child 12 years old or older;
(F) any available assessments, including custody evaluations, parenting assessments, psychological or mental health assessments, and bonding assessments; and
(G) any other relevant information;
(vi) the individual can provide evidence of the following:
(A) the relationship with the child is of long duration;
(B) that an emotional bond exists with the child; and
(C) that custody by the individual who has committed the disqualifying offense ensures the best interests of the child are met;
(A) there is no other responsible relative known to the court who has or likely could develop an emotional bond with the child and does not have a disqualifying offense; or
(B) if there is a responsible relative known to the court that does not have a disqualifying offense, Subsection (11)(d) applies; and
(viii) that the continuation of the relationship between the individual with the disqualifying offense and the child could not be sufficiently maintained through any type of visitation if custody were given to the relative with no disqualifying offense described in Subsection (11)(d).
(c) The individual with the disqualifying offense bears the burden of proof regarding why placement with that individual is in the best interest of the child over another responsible relative or equally situated individual who does not have a disqualifying offense.
(d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known to the court who does not have a disqualifying offense:
(i) preference for custody is given to a relative who does not have a disqualifying offense; and
(ii) before the court may place custody with the individual who has the disqualifying offense over another responsible, willing, and able relative:
(A) an impartial custody evaluation shall be completed; and
(B) a guardian ad litem shall be assigned.
(12) Subsections (10) and (11) apply to a case pending on March 25, 2017, for which a final decision on custody has not been made and to a case filed on or after March 25, 2017.
This chapter may not be used to seek, obtain, maintain or continue custody of, or visitation with, a child who has been relinquished for adoption, or adopted pursuant to an order of a court of competent jurisdiction.
Utah Family Law, LC | divorceutah.com | 801-466-9277